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Is Codification of Customary Law Desirable?By G.N.Sinha

This territory was not under any formal system of governance until 1914 when the government ofIndia, foreign and political department notification was issued. Before 1914, customs andtraditions were the prime law of the land. Customary practices and traditions were the guidingfeatures of many enactments made by the British.

Early enactments: Some landmark enactments made by the British in the olden times were theBengal Eastern Frontier Regulation 1873, the Assam Forest Regulation 1891, the Chin HillsRegulation 1896, and the Assam Frontier (Administration of Justice) Regulation 1945 etc.Protection of the cultural and bio-geographical diversity and customs were the ruling

jurisprudence of these landmark enactments. The Constitution of India under Article 13 laterapplied its seal on the customary laws granting them the status of a branch of constitutional law.What is customary law? Ancient custom is generally regarded as providing a foundation formany laws in most systems of jurisprudence and for reasons grounded in principle and justice.A custom is a usage by virtue of which a class of persons belonging to a defined section in alocality is entitled to exercise specific rights against certain other persons in the same locality.There can be usage without custom, but no custom without usage.Custom, if the law is to uphold it as right, should be immemorial in origin, certain, reasonable in

nature and continuous in use. When a customary right is upheld by the court it becomescustomary law. These customary laws were the creation of Indian courts.Recognition of customary rights: Customary rights by definition cannot be the creature of awritten instrument. Neither was the principles of customary laws codified nor were the saidcustoms listed out separately by legislation in India. However, customary rights were recognizedas early as 1872, when the Indian Evidence Act was enacted. Indian Evidence Act (Section 13)deals with the facts relevant for the proof of customary law. Likewise Section 10 to 16 oftheAssam Forest Regulation 1891 recognizes rights to pasture and forest produce at the stage ofsettling rights before a given area of forest is classified as Reserve Forest. These rights are, nodoubt, customary rights.But these rights were seldom transformed into customary rights in the field. The reasons weretwofold. Either the forest dependent communities were ignorant about their rights or the

settlement officers, with their narrow and rigid pro-establishment mindset, were not inclined togrant such rights to the people. However, it should be admitted that the early colonial legislationenacted over a century ago did recognize customary rights, though such legislation were veryfew.Conflict of laws: Policies of economic liberalization and massive planned development haveapplied great pressure on the customary laws of the people. A situation has arisen when one caneasily see a conflict between customary rights and modern laws enacted by the Parliament and invarious decisions of the Supreme Court of India.The Supreme Court of India has defined the term forest in the Forest Conservation Case (T.N.Godavarman v Union of India). The term forest has to be understood in its dictionary meaningand is irrespective of classification and ownership.1

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In other words, section 2 of the Forest (Conservation) Act. 1980 will be breached upon in case aninch of the 82 per cent area of the state is diverted for non forestry purpose. This has made greatimpact on not only the customary rights of the people as well as on their livelihood. The conflict

between customary rights/customary law and statute law has to be addressed and resolved.Is codification desirable? Votaries of codification of customary laws have little idea about theconsequences of any such codification. Custom and tradition of a tribal formation is always

evolving and at times old customs are phased out due to the impact of modernity and change inlifestyle. Codification of customs, customary rights, and customary law can therefore be neverexhaustive and it would also amount to stopping growth of customs and customary rights offuture generations. In addition to these courts may also arrive at different interpretations of thecustomary rights, once they are codified, by following strict rules of construction or functionalinterpretation. Votaries of codification should also remember that law and justice are often not ontalking terms.Further, the attempt to codify the customary rights will only aggravate the problem as many ofthe customs may fail to graduate to customary laws as they may be against the public policy or

judiciary may not recognize them due to contrary orders passed by the Apex Court in similar

situations.Customs and international treaties: The Convention on Biological Diversity (CBD) broughtconservation of biodiversity to global centre stage. The Convention ordains that nations shouldrespect, preserve and maintain knowledge, innovations and practices of local communitiesrelevant for conservation and sustainable use of biodiversity. The Rio Declaration, Agenda 21,and Forestry Principle also encourage the promotion of customary practices conducive toconservation. Likewise international declaration on human rights enjoins upon the governmentsto grant basic human rights to people.The task ahead: Firstly, how do we make the legal system work better for indigenous peoplesand how do we incorporate indigenous legal systems into the mainstream legal process without

violating the universality of human rights? In other words, howdo we recognize customary lawin a manner that is non-discriminatory?And secondly, provided that we can recognize indigenous legal systems in a manner that is non-discriminatory, how do we guarantee individual human rights within indigenous communities,

particularly for women and children? What about animal rights and prevention of cruelty to

them? These are also the issues around which the international and domestic implications ofcustomary law converge. These issues are required to be debated and probed seriously by theyoung lawyers. This will help in upholding the province of customary law in this state.Concerned citizens and civil society organizations in this state should appreciate the nature of

customary rights and their recognition in the Indian Constitution, laws and various international

treaties and declarations. They should work for the enforcement of the aims and objects contained

therein rather than to stress for codification of customary laws. (The author holds LL.M from the UK.

Views expressed in this article are his personal and not official. He can be contacted